Fullerton city attorneys are heading into Orange County Superior Court Friday to ask a judge for a temporary restraining order against resident Joshua Ferguson and a local blog to keep them from deleting city records they obtained and also asking a judge to appoint someone to comb through electronic devices for the records.
The move comes within a week of Ferguson serving the city with a public records lawsuit, which demands body camera footage of former City Manager Joe Felz’ 2016 Election Night car crash after he had been drinking and was ultimately given a ride home by police and not administered a breathalyzer test.
Ferguson is also demanding records about former police Lt. Kathryn Hamel, who may have cut a deal with the city to shield potential misconduct records from the new police disclosure law — SB 1421 — that kicked in at the beginning of the year.
A draft agreement between Hamel and the city is attached to Ferguson’s records lawsuit, along with an administrative investigation report on the Felz crash. The draft agreement was published on the local blog, Friends for Fullerton’s Future (FFFF), that Ferguson writes for.
Ferguson is mindful that he has the full legal power of the city aimed right at his front door, noting the temporary restraining order request is putting stress on his personal life, including his family and his work.
“They’re targeting my former coworker and my employer only because they don’t like the blog. And it’s really frustrating because they’re doing anything they can to retaliate against us,” Ferguson said Thursday. “Because the city broke the law and I filed a lawsuit to stop them from breaking the law — they retaliated.”
“My entire family gets put under an enormous amount of stress. Do I still have a job tomorrow? I don’t know, because they’re going after my employer,” Ferguson said, adding nobody at his work is involved in the blog.
The city alleges Ferguson and others on the blog illegally accessed its DropBox account — a cloud-based storage service — and downloaded numerous files.
“The complaint arises from alleged illegal and unauthorized access to a City shared file account in which the defendants repeatedly accessed, downloaded, and published without permission documents and files related to various topics, including but not limited to privileged or otherwise protected communications and documents relating to City of Fullerton internal personnel investigations and actions,” read a late Thursday night news release issued by Fullerton city officials.
“The actions of the Blog have placed the City in a position to defend against claims of breach of confidentiality and have potentially put at risk the security of protected information of both employees and members of the public,” states the release.
Fullerton also filed a court declaration from a forensic computer analyst, which details the alleged data breach.
The city’s court request also names a former coworker who worked with Ferguson at a local camera shop in Fullerton, but didn’t write for the blog.
Media attorney Kelly Aviles, who represents Ferguson, called Fullerton’s court request “totally improper” and added the city hasn’t served its response to the public records lawsuit yet.
“It’s retaliation for the CPRA (California Public Records Act) lawsuit,” Aviles said.
Fullerton Councilman Bruce Whitaker said he’s in a “tight spot” because of his position as a Council member, but “I’m always in favor or openness and transparency and I think that, like what was said in [the Voice of OC story] today (Thursday), they’re not using their own money to fight these efforts. They use taxpayers money and I think it’s very wasteful.”
No other Council member responded to calls for comment.
The city press release indicates council members approved the legal action.
“Based on evidence uncovered in our internal investigation and direction from the City Council, the City Attorney’s Office has now filed a complaint in Superior Court seeking a temporary restraining order against the involved Blog and its contributors. The requested restraining order is limited in scope to protect the 1st Amendment rights of the Blog and seeks only to stop the disclosure of legally protected documents,” states the City of Fullerton Thursday night press release.
Aviles, who is also Voice of OC’s litigator, likened Fullerton’s temporary restraining order request to a raid on a journalists house earlier this year.
“It’s not exactly the same, procedurally, but it’s like the reporter up in San Francisco where they raided this house. This is kind of the same,” Aviles said.
Earlier this year, San Francisco police raided freelance journalist Bryan Carmody’s home in May and seized his computer, tablets, phones, CDs and a thumb drive in an effort to identify a source using sealed search warrants, which drew the ire of First Amendment advocates and experts. Police busted open his door with a sledgehammer. The move drew national attention and the Associated Press submitted a court brief on behalf of Carmody to condemn the search and seizure.
San Francisco’s move was also in violation of California’s Shield Law, which protects journalists from search warrants aiming to find sources or documents, argued his attorney and legal supporters. His property was ultimately returned.
According to the city attorney’s letter to Ferguson, the city wants a “forensic expert” to comb through a slew of electronics.
“For the Court to appoint a third party forensic expert to examine the computers, servers, and storage media … within Defendants’ possession, custody or control, or within the possession, custody or control of any members, employees, writers, volunteers, agents, and any persons acting on their behalf or in concert with them, for all copies of the PST files listed at Exhibit A, for segregation and to be held in the Court’s custody until final resolution of this matter,” reads the letter.
According to the Reporters Committee for Freedom of the Press, bloggers, like Ferguson, are also covered under the state’s Shield Law, which protects journalists’ confidential sources. The committee was formed in the early 1970s in response to a wave of subpoenas issued to reporters in a government effort to identify sources.
The Shield law protection was extended to bloggers in a 2006 California Appeals Court case, when Apple sued a blogger for publishing confidential information. Apple attempted to define who is a journalist, but the Sixth District court sided with the blogger and extended the Shield Law protection to him.
The blog published documents on the potential Hamel deal, along with numerous other documents beginning in June. Greg Palmer, the city prosecutor, threatened to sue Ferguson and the blog over the documents and demanded the material be returned to the city and deleted from the blog.
“The City will revise its Notice of Intent to Discipline Hamel to remove allegations relating to dishonesty, deceit, untruthfulness, false or misleading statements, ethics or maliciousness. The Interim Police Chief will place a notice in the file indicating that, pursuant to settlement, all charges against Hamel … were never resolved or proven because there was no Skelly hearing or opportunity for appeal and, accordingly, are not sustained,” reads the draft agreement between the City of Fullerton and Hamel attached to the complaint.
Aviles said Fullerton is trying to treat Ferguson and the blog as criminals in order to avoid being labeled as a Strategic Lawsuit Against Public Participation (SLAPP) move. SLAPP suits are usually filed when a jurisdiction is trying to silence critics.
“They know what they’re asking for is a SLAPP-worthy request and SLAPP-worthy lawsuit. And they tried to avoid that by calling them criminals and criminal behavior. That is ridiculous. Just because you’re trying to avoid the SLAPP protection, you’re trying to go around calling people criminals — you can’t,” Aviles said.
Ferguson said his lawsuit and the city’s temporary restraining order request comes down to finding the truth.
“Ultimately that’s what this comes down to. The city is lying to people. The city was burying records.”
Although the city provided Ferguson a list of file names it would like back, Ferguson said he still doesn’t know which document was published on the blog that Fullerton is taking action on.
“So they want access to all our electronics. Considering how much of our lives are digital now, they want access to everything in our lives,” Ferguson said. “They’re going to argue that we did something illegal without directly telling us what we did illegal.”